TortsProf Blog

Three by Nolan

Donal Nolan has posted three pieces to SSRN.  First, Assumption of Responsibility:  Four Questions; the abstract provides:

Although the assumption of responsibility concept pervades the English law of negligence, its meaning remains hazy and its significance contested. While the courts employ the language of assumption of responsibility on a regular basis, no clear judicial definition of it has emerged. And commentators are divided as to whether assumption of responsibility is a distinct ground on which liability is imposed, or merely a foil for policy arguments ¬– or for another, more general, test for the recognition of duties of care. Matters are complicated by the fact that assumption of responsibility does not fit neatly within the orthodox categories of ‘tort’ and ‘contract’, but hovers uncertainly between the two. The aim of this article is to try to bring some clarity to the controversies surrounding assumption of responsibility. Four questions frame the analysis. What does assumption of responsibility mean? When does it matter? Why do we need it? And where does it belong? Although the answers to some of these questions are necessarily tentative, at least one conclusion should become clear, namely that assumption of responsibility is a meaningful and distinctive basis on which to impose negligence liability.

Second, The Essence of Private Nuisance; the abstract provides:

One meaning of the word ‘essence’ is the feature or set of features that defines a thing. My claim in this chapter is that the essence of the tort of private nuisance in this sense is interference with (or impairment of) the usability of the claimant’s land. Although this claim is merely a clarification of the orthodox definition or conception of the tort, the clarification turns out to be significant. Furthermore, while this central defining feature of private nuisance is well-established, it has been the subject of very little sustained analysis, and one of the aims of this chapter is to begin the task of plugging that gap. And finally, the orthodox conception of private nuisance has come under attack recently, and there is a danger that without a robust defense of it the coherence and utility of the tort will be compromised. In this chapter I seek to provide such a defense.

The chapter is divided into three main parts. In the first part, I show how orthodox it is to define private nuisance by reference to interference with the use and enjoyment of land, seek to clarify this defining idea as concerned with the abstract usability of the land, and consider the implications of this analysis for the scope of the private nuisance action. In the second part, I summarize and then critique a recent challenge to the orthodox conception of the tort, which I call the ‘physical invasion’ view. And in the final part, I briefly consider some of the implications for property theory of the orthodox conception of private nuisance, properly understood.

Finally, Tort and Public Law:  Overlapping Categories?; the abstract provides:

This article explores the relationship between tort law and public law as legal categories. The principal argument of the article is that certain aspects of modern tort law are best understood as falling within public law, rather than private law. I begin my analysis with the two tort doctrines that seem to me most clearly to fall within public law, namely the tort of misfeasance in public office and the availability of exemplary damages in cases of oppressive, arbitrary or unconstitutional action by servants of the government. I then go on to look at a more ambivalent doctrine, the tort of malicious prosecution. Finally, I consider the implications of conceiving of these various doctrines as part and parcel of public law, rather than private law. It follows from my analysis that there is no clear boundary between ‘tort law’ and ‘public law’, but rather a degree of overlap between the two categories. There are lessons here for both private lawyers and public lawyers. The lesson for private lawyers is that attempts to reconcile these doctrines with general private law principles are misguided. The lesson for public lawyers is that closer examination of these doctrines may further understanding of the nature and purposes of public law.

Czapanskiy on Taxing the Sale of Structured Settlement Income Streams

Karen Czapanskiy has posted to SSRN Tax Policy, Structured Settlements and Factoring:  Making Exploitation Easy and Profitable.  The abstract provides:

Secondary sales of streams of income payable under structured settlements of tort claims are such a disfavored transaction that Congress imposed a punitive 40 percent excise tax on them. These “factoring transactions” are disfavored because it is believed that payees are likely to be exploited, to dissipate the lump sum which is paid for the stream of income and to become dependent on taxpayers when payees become indigent as a result. Congress was also persuaded that state courts could keep an eye on the problems, however, so the 40 percent excise tax is excused if the transaction is approved by a state court in a proceeding under a state “Structured Settlement Protection Act” or SSPA.

State court supervision of factoring transactions might be an adequate response to the problems raised by secondary sales if the only person who suffers negative consequences is a self-supporting individual who is likely to remain so even after spending the money paid for the factoring transaction. The reality, however, requires a deeper look at the context. Most of the tort plaintiffs who sell their streams of income may be vulnerable to commercial exploitation because they are disabled people with significant cognitive, behavioral, and emotional issues. If the factoring transaction results in the predicted dissipation of the lump sum payment, a payee’s loss of a regular stream of income and subsequent impoverishment may affect the people who care for them, mainly their mothers, and the people who care for their dependents, another group of women. Most payees live in communities of color characterized by concentrated poverty—communities that could benefit from having more residents with income-producing assets. The structured settlement factoring industry knows all of this and uses the overlapping vulnerabilities to strip the payees, their families, and their communities of the only major asset that most of the payees will ever own. Given this context, I argue that critical tax policy supports repealing the exemption of SSPA-approved factoring transactions from the excise tax.

Frye & Miers on Internet Trolls and Section 230

Brian Frye & Jess Miers have posted to SSRN Combating Internet Trolls:  The Right of Publicity and Section 230.  The abstract provides:

Section 230 protects internet trolls and websites from liability for defamation and other torts, but from liability for intellectual property infringement. This essay argues that some plaintiffs may be able to use the right of publicity to bring claims otherwise preempted by Section 230. Specifically, it reflects on whether Kenneth Zeran could have filed a successful right of publicity action.

Jaeger on the Empirical Reasonable Person

Christopher Brett Jaeger has posted to SSRN The Empirical Reasonable Person.  The abstract provides:

The reasonable person standard is central to law, and to tort law in particular. But there is much debate about what it means for a person to be reasonable. Some scholars argue that reasonableness is an economic prescription, dictating that people should take (only) cost-justified precautions. Others contend that reasonableness is grounded in community customs or norms. Surprisingly, this scholarly debate has always been more philosophical than empirical. Though it is often lay jurors who determine whether litigants’ behavior is reasonable, very little work has actually examined how laypeople make this determination.

This Article approaches the reasonableness debate from a fresh empirical perspective, examining the factors that influence whether laypeople judge behavior reasonable. Across four experiments, participants’ judgments consistently depended on information about the behavior of others—and never depended on whether precautions were cost-justified. These findings supply the first experimental evidence that lay decision makers understand reasonableness more in behavioral than in economic terms; indeed, they may not understand reasonableness in economic terms at all.

After describing the experimental findings, the Article unpacks some of their implications. First, the Article contends that tort law’s reasonable person standard both is and should be informed by observations and beliefs about others’ conduct. Second, the Article identifies challenges that arise from conceiving of the reasonable person in economic terms. Finally, the Article raises the possibility that decision makers’ understanding of reasonableness varies—and perhaps should vary—depending on the nature of the alleged negligence at issue.

Concern that Convergence of Flu and COVID Could Boost Med Mal Claims

Because initial symptoms of flu and COVID-19 are similar, some experts are concerned that physicians will mistake the two, leading to an increase in malpractice claims.  Business Insurance has details.

Goudkamp & Nolan on an Empirical Perspective of Contributory and Professional Negligence

James Goudkamp & Donal Nolan have posted to SSRN Contributory Negligence and Professional Negligence:  An Empirical Perspective.  The abstract provides:

Although contributory negligence is usually associated with accident cases, it is frequently pleaded by defendants who have been sued for negligence in the performance of their professional duties, and yet very little is known about the impact of the doctrine in professional negligence litigation. In this chapter, we seek to fill this gap, by means of both empirical and qualitative analysis of recent contributory negligence case law in the United Kingdom. This analysis suggests that there are certain distinctive features of the operation of the contributory negligence doctrine in the professional negligence context.

Ginsberg on Palsgraf and Med Mal

Marc Ginsberg has posted to SSRN Palsgraf Meets Medicine:  Physician Beware!--The Unidentified Non-Patient and the Duty of Care.  The abstract provides:

This paper focuses on the intersection of proximate causation and physician liability. Specifically, the issue is this: should a physician be liable to an unidentified victim of a motor vehicle accident caused by a physician’s patient who was not warned to avoid driving due to a medical condition, prescription medication or procedure which may impair the patient’s driving ability? This paper surveys the jurisprudence of various states in search of the answer.

Arbel on Slicing Defamation by Contract

Yonathan Arbel has posted to SSRN Slicing Defamation by Contract.  The abstract provides:

In considering the problem of fake news, many debate the merits of expanding media liability through the tort doctrine of defamation. In this Essay I present an alternative: assigning liability for false accusations by contract. I develop and examine the utility of using truth bounties — contractual agreements to pay a bounty to anyone who can falsify a story.

On reflection, contractual tools appear more productive and robust than tort liability; in particular, truth bounties can encourage responsible media reporting, crowd-source the search for truth, send a refined signal of trust in the story, and chill false reports. Truth bounties are also realistic and compatible with the incentives of media outlets, although some of the procedural details need to be developed for mass adoption.

Justice Thomas Signals His Support to Contract Section 230 Immunity

Yesterday Justice Thomas signaled he would like the Supreme Court to take up the issue of the immunity provided by Section 230 (of the Communications Decency Act of 1996).  That section exempts websites from civil liability for most of the content provided by third parties.  Many argue that the scope of the exemption has been expanded beyond the text of the statute by lower court decisions.  The Supreme Court declined to hear an appeal on Section 230 from a Ninth Circuit decision, and Justice Thomas used that occasion to remark that in an appropriate case the Court "should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms."  Multichannel News has the story.

Billauer on Addressing Anti-Vaccine Speech

Barbara Pfeffer Billauer has posted to SSRN Addressing the Demonstrable Effects of Anti-Vax FEAR (False, Endangering, and Reckless) Speech With Mandated Public-Health Education and Government Speech.  The abstract provides:

The 2018-2019 measles epidemic was the worst the world has seen in 30 years, manifesting in increased morbidity, mortality, hospitalizations, and public health expenditures. Public Health officials and legal scholars attribute the rise to the emergence of organized and well-funded anti-vax groups, who disseminate false, endangering, and reckless “propaganda” (what I call FEAR speech) with the objective of fostering vaccine resistance. We are on track for similar resistance should a CoVid vaccine become a reality. To date, quantitative demonstration of cause and effect data is wanting. This research fills that gap, the first such research to do so via a systematic methodology. Using a novel approach, I explore the role of anti-vax groups in five localities, comparing recent measles epidemics with earlier epidemics in the same localities, also establishing that pamphleteering and conferences/symposia have been the most effective dissemination means for targeting insular communities.

After evaluating several proposals to deal with the threat presented by these groups, including imposing tort liability and counter-speech, and concluding they are or will be ineffective, I propose a novel means of redress. After first determining that government speech would be be a viable approach, I advocate mandated educational curricula under this umbrella, targeted at the high school level and include a sample lesson plan outline.

OH: Amazon is Not a Supplier for Purposes of Products Liability

Last week, the Supreme Court of Ohio ruled that Amazon is not a supplier for purposes of the Ohio Products Liability Act, and therefore not liable for the death of a teenage boy killed by an overdose of caffeine powder sold on the website.  Marianna Bettman has details at Legally Speaking Ohio.

Sloss on Section 230 and the Duty to Prevent Mass Atrocities

David Sloss has posted to SSRN Section 230 and the Duty to Prevent Mass Atrocities.  The abstract provides:

Between August and November, 2017, the Myanmar military carried out a series of brutal attacks against Rohingya Muslim communities in Rakhine State in Myanmar. Myanmar’s military used Facebook as a tool for ethnic cleansing. In theory, Rohingya plaintiffs could bring a state tort law claim against Facebook alleging that Facebook was negligent (or worse) in permitting its social media platform to be utilized to spark mass violence against the Rohingya. Could Facebook be held liable in a civil suit for complicity in genocide, or for aiding and abetting the commission of a crime against humanity? Under current federal law, the answer is clearly “no.” Section 230 of Title 47 of the U.S. Code states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Judicial decisions establish that Section 230 grants online service providers broad immunity for content posted by third parties. Thus, Section 230 provides Facebook a valid federal preemption defense to a state tort law claim.

This essay contends that Congress should create a statutory exception to Section 230 to permit civil suits against social media companies for complicity in genocide or crimes against humanity. The United States has a clear duty under international law to prevent genocide. One could also make a persuasive argument that the United States has a duty under customary international law to prevent crimes against humanity. The United States is not violating its international legal duty to prevent mass atrocities by granting immunity to internet companies. However, withdrawal of that immunity for content that contributes to commission of mass atrocity crimes would be a helpful step for the United States to implement its duty to prevent genocide and crimes against humanity.

Erichson, Goldberg & Zipursky on Case-Linked Jurisdiction and Busybody States

Howard Erichson, John Goldberg & Ben Zipursky have posted to SSRN Case-Linked Jurisdiction and Busybody States.  The abstract provides:

Beginning with Justice Ginsburg’s 2011 opinion in the Goodyear case – and echoed in Justice Thomas’s 2014 opinion in Walden v. Fiore and Justice Alito’s 2017 opinion in Bristol-Myers Squibb v. Superior Court – the Supreme Court has suggested that the distinctiveness of specific personal jurisdiction (in contrast to general jurisdiction) resides in its being “case-linked.” However, to date, the Justices have not spelled out what it takes for a defendant’s contacts with a forum to be case-linked, although they now have an opportunity to do so in a pair of personal injury cases brought against Ford Motor Company. This essay aims to provide the missing account of case-linkage, explaining along the way how it applies to the Court’s pending cases.

Our method is constructive and interpretive: we take as our starting point the Court’s precedents and its reasoning about two pillars of personal jurisdiction: state sovereignty and defendant’s due process rights. After Part I’s introduction, Part II re-examines the Court’s personal jurisdiction decisions from International Shoe to the present with the goal of understanding the concept of case-linkage as it has played out in the cases. Part III describes the Ford litigations presently before the Court, explaining why they invite consideration of an aspect of specific jurisdiction that the Court has yet to address adequately.

We put forward our theory of case-linked jurisdiction in Part IV. Case-linkage, we argue, can only be understood within a framework that isolates the key concepts that matter for due process. Two are crucial:

(1) a concept of the scope of the defendant’s submission to state authority, and

(2) a concept of the scope of the forum state’s legitimate interests.

We explain the latter in terms of the principle that a state’s courts ought not meddle in affairs beyond the state’s legitimate reach (labeled “the Anti-Busybody Principle”). By explaining case-linkage both in terms of the scope of a defendant’s submission to state power and of a state’s legitimate interests, we offer a way to bring together the process and sovereignty concerns that underlie the law of personal jurisdiction.

With our own affirmative account in place, Part V shows why the “causation” approach to case-linkage advocated Ford and by some lower courts are indefensible, even if the more expansive “relatedness” tests of other courts are also not up to the task at hand. We also show that the intuitively right answer to the Ford cases — that a state court has jurisdiction to hear tort claims brought by state residents injured in-state by the defendant’s product (when the defendant has extensively sold the product-line in that state) — not only meshes with all relevant Supreme Court precedents, but also points to the best path forward for understanding, defining, and demarcating case-linked jurisdiction.

PA: Appeals Court Holds PLCAA Unconstitutional

On Monday, the Pennsylvania Superior Court held that the Protection of Lawful Commerce in Arms Act (PLCAA) was unconstitutional.  In March 2016, J.R. Gustafson was killed when his 14-year-old friend accidentally shot him with a semi-automatic handgun that he thought was unloaded.  Gustafson's parents sued both the manufacturer of the weapon and the store that sold it.  Both defended themselves by invoking the PLCAA, a federal law passed in 2005 that provides businesses cannot "be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended."  The trial court dismissed the case in January, but the appellate court held that PLCAA violates the Tenth Amendment and principles of federalism.  This is the first court to hold the law is unconstitutional in its entirety.  CNN has the story.  The opinion, thanks to Tim Lytton, is here:  Download Gustafson-opinion (002)